Chilled Chambers: Constitutional Implications of Requiring Federal Judges to Disclose Their Papers Upon Retirement

25 Pages Posted: 22 Feb 2018 Last revised: 1 May 2018

See all articles by Justin Walker

Justin Walker

University of Louisville - Louis D. Brandeis School of Law

Caroline Phelps

University of Louisville, Louis D. Brandeis School of Law

Date Written: February 12, 2018

Abstract

When the cost of transparency rises to the level of unduly interfering with the ability of judges to carry out their constitutionally assigned responsibilities, principles of separation of powers preclude Congress from imposing that transparency. That is what this essay is about—whether, as has been repeatedly proposed, Congress can constitutionally require federal judges, upon retirement, to reveal their internal deliberations through the disclosure of their bench memos, correspondence with colleagues, initial votes at conferences, early drafts of judicial opinions, and other papers.

Keywords: federal courts, executive privilege, unitary executive, separation of powers, judicial power, transparency, judicial papers, freedom of information act

JEL Classification: K00, K19

Suggested Citation

Walker, Justin and Phelps, Caroline, Chilled Chambers: Constitutional Implications of Requiring Federal Judges to Disclose Their Papers Upon Retirement (February 12, 2018). University of Memphis Law Review, Vol. 47, No. 4, 2017, University of Louisville School of Law Legal Studies Research Paper Series No. 2018-4, Available at SSRN: https://ssrn.com/abstract=3122724

Justin Walker (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

2301 S 3rd St.
Louisville, KY 40208
502-852-6638 (Phone)

Caroline Phelps

University of Louisville, Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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